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Posted at 11:47 AM ET, 07/18/2011

Fashion Industry Testifies in Favor of Design Copyright Protections (Again)


NEW YORK, NY - JUNE 06: Jack McCollough (L) and Lazaro Hernandez (R) pose backstage at the 2011 CFDA Fashion Awards at Alice Tully Hall, Lincoln Center on June 6, 2011 in New York City. (Photo by Andrew H. Walker/Getty Images) (Andrew H. Walker - GETTY IMAGES)
For a few moments, the fashion savants in the room must have wondered whether Rep. Bob Goodlatte (R-VA) would butcher the introduction. It wouldn’t have been the first time Lazaro Hernandez, designer and co-founder of Proenza Schouler, heard his celebrated young label mispronounced.

Goodlatte, whose name, too, is often accidentally given an extra syllable by Starbucks enthusiasts, introduced Hernandez as though the Congressman were a fanatical subscriber to Vogue.

“Pro-en-za Skool-er,” Goodlatte said with authority.

Phew. Congress may finally be listening.

Since 2006, designers have testified on Capitol Hill in favor of design copyright protections. On Friday, Hernandez, accompanied by business partner Jack McCollough, pleaded his case for copyright protections, explaining what it’s like to launch a label at age 23, grow it into $15 million business, and then see their signature satchel duplicated by mass-market retailers. Unlike Louis Vuitton or Michael Kors, which display their trademarked interlocking initials across handbags (effectively protecting them from counterfeiting), Proenza Schouler’s fashions are identified by design, a creative endeavor that carries no legal protections.

The members of the Judiciary Subcommittee on Intellectual Property, Competition and the Internet have heard similar testimony before. Young designers like Jason Wu, Prabal Gurung and Narciso Rodriguez have been in the same room at the Rayburn Building previously, testifying in hearings on the Innovative Design Protection and Piracy Prevention Act (IDPPPA).

The bill is a top priority for many designers, and the Council of Fashion Designers of America (CFDA), the fashion industry’s main trade association, touts it as a bill that will help the little guy, the young designer who’s just out of Parsons and can’t compete if Forever 21 copies his or her designs. If passed, the IDPPPA, now in its second iteration, will give three years of copyright protections to innovative designs not in the public domain, preventing fast-fashion retailers from making exact copies of “unique” fashion designs.

On Friday, nine members of Congress sat stone-faced as they listened to testimonies. Hernandez spoke of costs—his team produces four collections a year that cost $3.8 million to make—and of an internet age that transports images of his designs on the catwalk to “copyists in China,” that replicate his designs before critics at fashion weeks can review them.

Jeannie Suk, a professor at Harvard Law School, testified in favor the bill, as well, distinguishing between inspired works and exact copies. She thinks the bill will benefit the industry and consumers by forcing fast-fashion chains to vary their designs and “innovate rather than simply replicate” high-end designers.

Most notably, Kurt Courtney of the American Apparel and Footwear Association testified in favor of the bill, reversing their initial opposition to the bill since Congress revised the original “broad definitions” to fix what Courtney called “a narrow problem.”

Christopher Sprigman, a professor at the University of Virginia School of Law, testified in opposition to the bill, arguing that it’s unnecessary and could cause needless litigation. To prove his point, he showed a slide that pictured Proenza Schouler’s PS1 leather satchel alongside Mulberry’s Alexa bag, arguing that Mulberry could file suit against Proenza Schouler under the proposed legislation.

The fashion crowd seemed outraged by the comparison, with reactions that echoed Justice Potter Stewart’s famed classification of obscenity: “I know copying when I see it… and this case is not that.”

Suk gave her take on the slide, retorting with, “To those who don’t know classical music, Bach doesn’t sound different than other Baroque composers.”

But the committee seemed mixed, with ranking committee member Rep. John Conyers (D-MI) going so far as to say to congratulate Hernandez for his passion, and then conclude with: “I don’t agree with you.”

Ben Quayle (R-AZ) asked Sprigman about changing technology and whether it is now necessary to protect designs because of the internet. Sprigman argued that the fax machine could have had a similar effect on copying. Hernandez later retorted that 360-degree shots of apparel make copying and pattern making much simpler.

After the hearing, Hernandez corrected Sprigman, saying that his label designed the PS1 Satchel before Mulberry released the Alexa bag.

Would he want to sue Mulberry for copying?

“Probably not,” said Hernandez, while CFDA executive director Steven Kolb noted that the bags, “are similar, but not identical.”

Those outside the legal and fashion industries might find the legislation tedious, but the implications of the bill, which go beyond the “job creation” or “needless litigation” catch phrases of the hearing, could change the landscape of the fashion industry for designers and consumers. After a year of heated negotiations, it appears most designers and manufacturers are in agreement.

“The CFA isn’t on board,” said Sprigman after the hearing, who later said the California Fashion Association, which represents mass-market retailers like Forever 21 and international trade offices in Hong Kong and Brazil, supplied him with the controversial slide that pictured the Mulberry and Proenza Schouler bags alongside each other.

In addition to fast-fashion chains, free culture enthusiasts in the legal community, many of whom oppose intellectual property rights on philosophical grounds, also find fault with the legislation.

But witnesses on both sides refrained from lofty arguments. Instead, they focused on “saving jobs” or “preventing needless litigation,” concrete effects that committee members can turn into talking points without bringing the tricky language (and phonetics) of fashion back to their districts.

By  |  11:47 AM ET, 07/18/2011

 
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